Update on Schwarzenegger and Tort Reform
February 5, 2010
As I reported earlier, California Governor Arnold Schwarzenegger has pledged to push for tort reform in this, his final year in the governor’s office.
Veteran California political columnist Dan Walters gives a brief history of the tort wars in the Golden State and reports on the reform package’s chances for success - not great. In Walters words,
Don’t hold your breath. The Legislature’s Democratic majority is symbiotically welded to the trial bar.
NYT Article Cites AJP Report
January 28, 2010
Yesterday’s New York Times business section featured on article on global warming litigation. The reporter cites a 2008 report published by the American Justice Partnership - the organization I head up - and the Southeastern Legal Foundation entitled, The Most Dangerous Litigation in America.
It appears that business is finally waking up to the threat these suits possess. Here’s an excerpt from the article:
“…In the context of climate change, such cases were once derided as frivolous long shots that would be shot down quickly. Scott H. Segal, a lawyer for energy companies, joked in a 2004 article in Grist magazine that the cases brought “new meaning to the term ‘nuisance lawsuit.’
“No one is laughing now. In a report issued last year, Swiss Re, an insurance giant, compared the suits to those that led dozens of companies in asbestos industries to file for bankruptcy, and predicted that ‘climate change-related liability will develop more quickly than asbestos-related claims.’”
Where’s The Outrage?
April 7, 2009
Today’s Wall Street Journal makes a great point: why is prosecution so slow in coming after very clear evidence of fraud in asbestos-related cases?
It took New York State’s Board for Professional Medical Conduct nearly four years to revoke the license of Dr. Ray Harron after a Texas judge ruled that he had given fraudulent diagnoses – over 51,000 – of silicosis and asbestos-related disease to plaintiffs in pending litigation. When called to testify before Congress on this, Dr. Harron took the Fifth Amendment. So it’s good that New York is finally catching up to the other states that have revoked his license, though they made up for their delay a bit by noting that ‘[Dr. Harron] was part of an operation to find plaintiffs with silicosis whether or not they really had silicosis. This is perpetrating a fraud on the courts.”
It’s a fraud on medicine, too. Do you really want your doctor taking the Fifth?
The Journal is right to call on both the U.S. Attorney’s Office for the Southern District of New York and on New York Attorney General Andrew Cuomo to investigate this – as he did with the Wall Street Bonuses – and to follow up with prosecutions, when the evidence of guilt and of fraudulent conduct is so clear. But the investigation shouldn’t just stop with the doctors; it needs to go further, to the trial lawyers who may have directed the doctors’ conduct.
After all, fraud is fraud, whether it’s Bernie Madoff, a doctor who gives fraudulent diagnoses for pay, or the trial lawyer who offers the pay.
How Many Purses Can You Buy For $125,000?
February 6, 2009
What do you call $125,000 in gift cards to a women’s clothing store? An attorneys’ fee!
It seems the clerks at Windsor Fashion in California were requesting email addresses and telephone numbers for customers paying by credit card. A minor inconvenience or a modest intrusion – but also a violation of Civil Code § 1747.08 (a) (2). (Metropolitan News-Enterprise through Walter Olson)
Attorney Neil Fineman rushed forward to reverse this travesty of justice, slapping Windsor Fashion with a class action lawsuit. As part of a settlement OK’d last month by a California judge, each class member who can be found will receive a $10 gift card to Windsor.
Rather than walking away with a fat check for his legal services, Fineman himself will soon become a regular at the store as he tries to work off the 12,500 $10 gift cards he received as compensation for filing the action.
What Do You Get When You Combine 5,000 Port-O-Potties With A Presidential Inaugural? A Discrimination Lawsuit!
January 13, 2009
Just when you thought you’d heard it all…Washington, DC radio station WTOP reports that a George Washington University law professor believes the 5,000 port-o-potties hauled in for President-elect Obama’s inauguration are “grossly inadequate” and has warned the Presidential Inaugural Committee of potential lawsuits.
Professor John Banzhaf – who WTOP calls the “Father of Potty Parity” – says that since women typically take longer restroom breaks than men, they may need to wait in line longer, which represents discrimination. Professor Banzhaf says “waiting in long lines is not just an inconvenience, it can trigger medical problems.”
I promise you, I’m not making this up.
Trial Lawyers Behaving Badly (Continued)…
December 17, 2008
Walter Olson over at Overlawyered called our attention to this item today. Seems that two men in New Orleans had to be forcibly separated after escalating verbal taunts turned into a full-fledged brawl that left one man with a sore neck, while the other was led away in handcuffs, fined and ordered to spend the night in jail.
A couple of drunken fans at a Saints game? Late night French Quarter revelers who had a few too many “go” cups?
Nope – just a pair of greedy personal injury lawyers fighting it out for a potential $5 million payday in a case against an insurance company.
According to a report in the New Orleans Times-Picayune, attorneys Madro Bandaries and J. Robert Ates (age 63) were in Orleans Parish Civil District Court on Monday for a hearing on their rival class action lawsuits against Louisiana Citizens Property Insurance Corp. Accounts differ. Attorney Bandaries, “his voice shaking,” claims Mr. Ates put his hands on his shoulders, made a sarcastic comment, then the “next thing you know, he has me on the floor.” Attorney Ates claims it was Mr. Bandaries who made the “snide remark” and later “attempted to kick me in the scrotum” – a tactic so low, dirty and underhanded even Kimbo Slice shuns it.
That’s when things started getting ugly. A couple of observers had to jump in to break up the melee, while a stunned Judge Kern Reese rushed from his chambers to mete out the punishment. “The one thing I am not going to tolerate is lawyers being unprofessional,” Judge Reese pronounced as bailiffs slapped the cuffs on Mr. Ates. It’s bad enough that money-grubbing lawyers have turned our courtrooms into casinos…but a cage fight?
And the Judicial Hellholes Are…
December 17, 2008
- West Virginia
- South Florida
- Cook County, IL
- Atlantic County, NJ
- Montgomery and Macon Counties, AL
- Los Angeles County, CA
- Clark County, NV
These are the worst jurisdictions in America for companies that find themselves on the receiving end of a lawsuit – the true “judicial hellholes”– according to the just-released rankings for 2008 by the American Tort Reform Association (ATRA).
Judicial Hellholes aren’t simply courts that are unusually challenging for corporate defendants. They are “magic jurisdictions” where “trial lawyers have established relationships with the judges” and, for companies, “it’s almost impossible to get a fair trial if you’re a defendant” because “any lawyer fresh out of law school can walk in there and win the case … it doesn’t matter what the evidence is.”
Those aren’t the observations of ATRA or some other legal reform supporter. They represent the refreshingly candid, but chilling assessment of a trial bar insider, someone who knows a thing or two about winning big judgments in tilted courtrooms – none other than Dickie Scruggs who is now wearing an orange jumpsuit after pleading guilty to bribing a Mississippi judge, but not before exploiting his “magic jurisdictions” to rake in billions in legal fees.
ATRA president Tiger Joyce points out that “every dollar spent defending against a speculative lawsuit is a dollar that won’t be spent on research and development, capital investment, worker training or job creation.” Absolutely! But given today’s economic turmoil, when every company is cutting back, those stakes has been raised: Now every dollar that goes into the pocket of some greedy trial lawyer is also a dollar that can’t be spent to keep a worker on the payroll.
ATRA’s annual judicial hellhole reports have probably done as much as any single piece of research to spotlight trial lawyer abuse of our legal system. The 2008 report also includes two new sections: Tort Deform, which looks at efforts by the trial bar to reverse critical legal reforms in many states and a Rogue’s Gallery, which exposes particularly egregious examples of trial lawyer fraud, deceit and dishonesty and calls Congress to account for failing to investigate the scandalous behavior that pervades the trial bar.
As always, Judicial Hellholes 2008/2009 is must reading for anyone concerned about how trial lawyers abuse our legal system for personal gain while destroying good companies and undermining our economy.
Vioxx Saga Continues
December 13, 2008
Last May, a Texas appellate court spiked a $32 million (later reduced to $7.75 million) award to the family of a man who had a fatal a heart attack while taking Vioxx pain medication. The WSJ Law Blog reports that the appellate court concluded there was insufficient evidence that the man, who had a pre-existing heart condition, suffered the heart attack as a result of taking the drug. But now the appellate court has reversed its May ruling, sending the case back to trial with “legally sufficient evidence to support a finding of specific causation” – tilting the legal playing field sharply in the direction of the plaintiffs’ lawyers trying the case.
The Definition of Chutzpah
December 11, 2008
Class action lawsuits have become notorious for generating huge payouts for trial lawyers (with plaintiffs often getting little or no benefit), so it’s hard for any level of fee-grubbing to shock these days. But a couple of class action predators up in Massachusetts may have set a new standard. (Hat tip to Walter Olson and his invaluable Overlawyered.com for getting the ball rolling on this one).
It seems class counsel in a case against TJX Companies that settled last summer went before a judge and asked for $6.5 million in legal fees. I know that’s hardly a shocking figure in today’s world of Powerball-sized fees – until you realize that, according to the judge who heard the lawyers’ demand, the actual class members in the case had only received $6.1 million, a figure “unlikely significantly to increase.”
I guess at least one profession is recession-proof.
Don’t Hold Your Breath
December 8, 2008
A Washington Examiner editorial challenges the incoming Obama Administration to launch a Justice Department investigation of the corrupt practices of felon Bill Lerach and the securities class action bar. Mr. Lerach and several of his former partners at the notorious Milberg Weiss law firm (including Melvyn Weiss himself) were convicted of paying more than $11 million in illegal kickbacks to front-men clients in more than 250 cases.
As the Examiner points out, Mr. Lerach defended this illegal scheme as standard “industry practice” and revealed that “everybody” in the trial bar engaged in similar conduct. Yet congressional leaders, who routinely drag corporate CEOs before the TV cameras to express outrage at the actions of business executives, have ignored calls by Republicans to investigate the scandalous behavior of the trial bar.
Will the Obama Administration take the lead in uncovering trial bar corruption? Don’t hold your breath. As the Center for Responsive Politics reports, since 1990, law firms and attorneys have pumped nearly $1 billion – that’s billion, with a “b” – into federal campaigns, about three-quarters of it to Democrats. In the 2008 election cycle alone, Democrats raked in nearly $165 million from their trial lawyer allies – more than seven times the amount Republican candidates collected from the much-maligned Oil & Gas industry. President-elect Obama collected nearly $37 million from lawyers and law firms alone.
Apparently that kind of money doesn’t just buy influence in Washington – it buys immunity.